Now
before the Court is Defendant's Motion for Pretrial
Determination That the Imposition and Execution of the Death
Penalty is Barred Based Upon Ulysses Jones' Intellectual
Disability and Request for a Hearing (Doc. 158). After
carefully considering all the evidence, the Court finds
Defendant has not carried his burden of showing by the
preponderance of the evidence that he is intellectually
disabled under Atkins v.Virginia, 536 U.S. 304
(2002), and its progeny.

In
fact, the Government demonstrated Defendant does not have
intellectual disability. The credible evidence and testimony
shows that Defendant was developmentally delayed as a child,
but his development “caught-up” as an adult, as
demonstrated by significant evidence in the record, including
his own writings, evaluations from numerous mental health
professionals, and his passing the GED exam in 1985. While
Defendant presently suffers from a significant neurocognitive
defect, this is the result of his end stage renal disease and
a severe head injury he sustained in April of 2007, sixteen
months after the crimes in this case occurred.

The
motion is DENIED.

Findings
of Fact

The
Court held a four-day evidentiary hearing on this issue over
an eight day period, from March 13, 2017, to March 20,
2017.[1] During the hearing, Defendant presented
live testimony from two expert witnesses, Dr. Stacey Wood
(“Dr. Wood”) and Dr. Daniel Reschly (“Dr.
Reschly”), and three of Defendant's cousins: Bessie
Harris, Glenda Thompson-Dunn, and Phyllis Shipman. Defendant
also submitted 23 exhibits. The Government presented
testimony from two experts, Dr. Robert Denney (“Dr.
Denney”) and Dr. Jack Naglieri (“Dr.
Naglieri”), and a dialysis technician, Nickole
Anderson, who has frequent contact with Defendant. It also
presented 73 pieces of documentary evidence and two
demonstrative exhibits. Both parties submitted voluminous
post-hearing briefs.

The
following summarizes the most relevant testimony and the
Court's credibility findings.[2] Although this summary
discusses some of the evidence in detail, the Court's
failure to discuss any particular piece of evidence should
not be construed as a comment on its probative value. In
concluding Defendant is not intellectually disabled, the
Court has carefully considered all of the evidence in the
record.

Dr.
Stacey Wood

The
Defense retained Dr. Wood to conduct a comprehensive
neuropsychological assessment of Defendant. She has
previously worked on numerous cases involving Atkins
issues. Dr. Wood holds a Ph.D. in clinical neuropsychology
from the University of Houston and participated in a
post-doctoral fellowship in clinical neuropsychology from the
University of California at Los Angeles in both psychiatry
and neurology. Although a licensed psychologist, she is not
board certified in her specialty, geropsychology, nor is she
board certified in neuropsychology or forensic psychology.

Her
work in this case concerned the first prong in the
Atkins analysis, whether Defendant has significantly
subaverage intellectual functioning. Dr. Wood administered an
IQ test, the Wechsler Adult Intelligence Scale-IV (WAIS-IV),
to Defendant in October of 2014 and prepared a report of her
findings. She determined that as of October 2014 (that is,
seven years after Defendant's head injury), he had a full
scale IQ of 70 comprised of the following scores: 63 on the
verbal comprehension index, 81 on the perceptual reasoning
index or performance IQ, 80 on the working memory index, and
76 on the processing speed index. Dr. Wood opined that
Defendant's IQ “score likely represents a decline
secondary to impaired language abilities and slowed
processing speed resulting from his complicated traumatic
brain injury and other medical conditions.” Dr.
Wood's Neuropsychological Evaluation at 11-12 (Doc.
251-1).

Dr.
Wood's in-court testimony was consistent with her report.
Particularly relevant to the Atkins determination,
she acknowledged that Defendant's score of 63 on the
verbal index dragged down his full scale IQ score, and that
the low verbal index score could have been the result of lack
of schooling, educational opportunities, and the amount of
time he spent in jail. She also acknowledged his low verbal
score had no impact on his performance IQ. Dr. Wood also
testified that, based upon Dr. Denney's evaluation, she
believed Defendant's cognitive abilities declined further
from the time of her evaluation in 2014 to Dr. Denney's
evaluation in 2016.

Dr.
Wood did not adjust the IQ score on the WAIS-IV for the
“Flynn Effect”[3] in her report, but, at defense
counsel's request, she adjusted the scores in her in
PowerPoint presentation for the Atkins hearing. She
testified she does not normally correct for the Flynn Effect
when she is doing a contemporaneous assessment using the most
recent test version, but she did do so here.

Dr.
Wood acknowledged that if Defendant's cognitive
impairment was the result of events from later in his life,
such as brain damage from his head injury and decline from
years of renal failure, a diagnosis of intellectual
disability would be inappropriate.

The
Court finds her report and testimony generally credible.

Dr.
Daniel Reschly

Dr.
Reschly was hired to provide expert testimony on behalf of
the defense. In his report and testimony, Dr. Reschly opined
that Defendant met the definition of intellectually disabled
as a child, adolescent, and adult. He opined Defendant's
current intellectual functioning was between 65 and 75, and
that he has had adaptive behavior deficits in everyday
functioning since childhood and continuing into his adult
years which were associated with significant limitations in
functional intelligence. He opined that Defendant had
significant limitations in intellectual functioning in
childhood as demonstrated by full-scale IQ scores of 66 at
age 6, 72 at age 15 (Flynn Effect corrected to 65), and 70 in
2014. Based on Vineland-II Adaptive Behavior Scales
(“VABS-2”) survey forms completed from
information provided by two of Defendant's younger
cousins, Luella Harris and Bessie Harris, Dr. Reschly opined
that Defendant had significant deficits in adaptive behavior
during childhood in each of the adaptive behavior domains
identified by the American Association on Intellectual and
Developmental Disabilities
(“AAIDD”)[4] and by the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental
Disorders, Fifth Edition (“DSM-5”).

As for
the opinions of the numerous psychologists and psychiatrists
who evaluated Defendant over the years and diagnosed him with
antisocial personality disorder (“ASPD”) and not
intellectual disability, Dr. Reschly dismissed their opinions
as a classic case of diagnostic overshadowing (clinicians
overlooking mild intellectual disability in favor of another
diagnosis).

The
Court gives Dr. Reschly's testimony limited weight and
his conclusions no weight.[5]As a threshold matter, Dr. Reschly lacks
significant experience and credentials in the subject matter
as it relates to this particular case, performing a forensic
evaluation on a prisoner in a prison setting. Dr. Reschly is
an expert in special education and in assessing mild
intellectual disability in school children, but he has never
been licensed to practice psychology outside of a school
setting, and he is not currently licensed to practice any
form of psychology in any place in the United
States.[6] He has also never practiced clinical
psychology, forensic psychology, or neuropsychology, nor does
he have any meaningful experience evaluating patients in a
forensic setting such as a hospital or prison, which is what
this case involves. Although he admitted he lacked competence
to diagnose ASPD, this did not prevent him from testifying
that Dr. Denney's diagnosis was wrong.

Also,
Dr. Reschly's analysis and testimony were
results-oriented. Dr. Reschly started from a conclusion-that
Defendant has been intellectually disabled since
childhood-and then worked backward to identify evidence and
develop a rationale supporting this conclusion. For example,
he assumed that a report card showing Defendant earned
several Cs must have shown grades from special education
classes, even though nothing in the report card indicated
these were special education classes. Dr. Reschly should have
considered that those grades could have been from regular
classes. He did not, apparently because Defendant receiving
“C” grades in regular classes would be
inconsistent with his conclusion. Dr. Reschly also avoided
evidence which would undercut his conclusion, such as the
opinions of several mental health professionals with the
federal Bureau of Prisons (“BOP”) who evaluated
Defendant over many years and never found him to be
intellectually disabled. An unbiased expert would have
attempted to contact these doctors and learn why they did not
believe Defendant was intellectually disabled.

Dr.
Reschly's opinion is also inconsistent with several key
facts. The Court heard undisputed testimony that individuals
with mild intellectual disability tend to be
“pleasers” who are compliant with authority
figures. On the other hand, individuals with ASPD are not
typically compliant unless it is in their best interest. The
overwhelming evidence in this case is that Defendant is not,
and never has been, a “pleaser” or compliant with
authority figures. It is also very rare for an individual
with intellectual disability to receive a General Education
Diploma (“GED”). Yet Dr. Reschly testified that
the fact Defendant had received his GED did not
“confirm” or “disconfirm” that he was
intellectually disabled. Tr. at 265. While this is, strictly
speaking, correct-since theoretically no single piece of
evidence is dispositive, a GED does not automatically rule
out this diagnosis-it is very weighty evidence against
intellectual disability. The Court finds crucial portions of
Dr. Reschly's analysis, such as his description of Luella
Harris and Bessie Harris as competent informants about
Defendant's adaptive behavioral skills in his
developmental years, to be so lacking in credibility that it
casts a shadow over his entire analysis.

Finally,
the Court finds Dr. Reschly's demeanor while testifying
was, at times, incongruous with that of a disinterested
witness. Dr. Reschly was always pleasant and unfailingly
polite, but at important moments during the Government's
cross-examination he was noticeably evasive in answering some
questions.

Ms.
Harris is Defendant's first cousin. She was born in 1958,
making her two years younger than Defendant. She testified
that she had more significant contact with Defendant during
his elementary school years when she would see him at her
grandmother's house. She testified Defendant stuttered
during that time period, was slower than the other kids when
it came to reading and playing games, and he could not learn
to play chess. His cousins and neighbors laughed at him, and
his father was very abusive towards him. He needed extra help
in school, but did not receive any.

Ms.
Thompson-Dunn is three years older than Defendant. She
graduated from high school and recently retired from being a
peer educator in special education. She testified she helped
Defendant with his schoolwork when he was 9 and 16 years-old,
and that he had difficulty reading and performing math. In
fact, he had trouble counting to fifteen when he was 16
years-old. Kids teased him and picked on him.

Despite
testifying that she helped him with his schoolwork when he
was 16 years-old, Ms. Thompson-Dunn said was not familiar his
criminal conduct in his teenage years. She also struggled to
remember where she or Defendant lived at that time.

Ms.
Shipman is a retired registered nurse who was born in 1952.
She saw him more while she was living with her grandmother
from 1965 to 1967, when she was approximately 13 to 16
years-old, and Defendant was 9 to 12 years-old. She remembers
Defendant's father being physically and verbally abusive
to him. She also remembers his mother trying to help him with
his reading and math, and her complaining that he was very
slow.

She had
limited interaction with Defendant. She did recall him coming
back from the corner store with incorrect change. He could
not make change-he thought a quarter and a nickel were the
same-but his younger brother could. Defendant stuttered and
did not talk much. She described him as
“regressed” in comparison to her other cousins,
and that he was teased by them for being “dumb”
and “stupid.”

Ms.
Shipman testified that Defendant did not like school, and
that on one occasion after he got in trouble in elementary
school, he broke into the school in retaliation. She stopped
having regular contact with Defendant when he was
approximately eleven years-old.

The
Court believes all three of witnesses testified truthfully to
the best of their abilities. They are very nice ladies. But
their memories of what Defendant was like almost fifty years
ago are incomplete and unreliable, and doubtlessly clouded by
their familial love for him and desire that he not receive
the death penalty. The Court finds none of these
witnesses' are reliable sources of information about
Defendant's developmental years.

Dr.
Robert Denney

Dr.
Denney is a psychologist licensed in the state of Missouri.
He is board certified in neuropsychology as well as forensic
psychology. Dr. Denney was a practicing psychologist with the
BOP from 1991 through 2011. He has excellent credentials and
extensive relevant experience. His demeanor was candid and
straightforward. The Court finds his testimony very credible
and gives it significant weight.

Dr.
Denney met with Defendant over two days in June of 2016 and
administered the WAIS-IV in an attempt to calculate his IQ.
He also attempted to conduct a clinical interview of
Defendant in person, but Defendant refused to answer
additional questions once Dr. Denney began asking about his
childhood. Before Defendant ended the interview, he stated he
authored and wrote the six letters/pleadings contained in
Exhibit 34.

Dr.
Denney determined Defendant's full scale IQ was 63, with
a composite score on the performance aspect of 75. In his
September 16, 2016, report, he concluded that:

Currently, Mr. Jones has significant neurocognitive deficits
that in my professional opinion result from a combination of
chronic small vessel disease secondary to long term
hypertension and renal failure and the result of his
complicated brain injury. In my professional opinion, these
deficits ...

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